B-129041, NOVEMBER 21, 1956, 36 COMP. GEN. 415

B-129041, NOVEMBER 21, 1956, 36 COMP. GEN. 415

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - FAILURE TO FURNISH V. BLANKET OFFER OF COMPLIANCE THE FAILURE OF A BIDDER TO COMPLY WITH AN INVITATION REQUIREMENT SPECIFICALLY CALLING FOR DESCRIPTIVE DATA WHICH IS DEEMED MATERIAL AND WHICH WILL BE CONSIDERED IN THE EVALUATION OF BIDS IS NOT OVERCOME BY THE BIDDER'S BLANKET OFFER TO COMPLY WITH THE SPECIFICATIONS, NOR MAY SUCH FAILURE BE WAIVED BY THE CONTRACTING OFFICER UNDER AN INVITATION WHICH RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT BIDS NOT IN COMPLIANCE WITH THE REQUIREMENTS.

TO THE SECRETARY OF THE INTERIOR, NOVEMBER 21, 1956:

A LETTER FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF OCTOBER 1, 1956, REQUESTS A DECISION AS TO WHETHER WE WOULD BE REQUIRED TO OBJECT TO THE REJECTION OF THE BID OF THE AMERICAN ELIN CORPORATION OF NEW YORK MADE PURSUANT TO INVITATION NO. DS-4712 FOR FURNISHING HYDRAULIC TURBINES FOR THE WANSHIP AND GATEWAY POWER PLANTS UNDER THE CIRCUMSTANCES SET OUT BELOW.

BIDS WERE OPENED BY THE BUREAU OF RECLAMATION ON JULY 17, 1956, AT DENVER, COLORADO. THE AMERICAN ELIN CORPORATION, THE LOW BIDDER BY A SUBSTANTIAL MARGIN, PROPOSED TO FURNISH TURBINES TO BE MANUFACTURED BY A WEST GERMAN CONCERN. PURSUANT TO THE TERMS OF THE INVITATION, ELIN HAD SUBMITTED CERTAIN DATA CONCERNING THE TURBINES PROPOSED TO BE FURNISHED. THESE DATA DISCLOSED THAT THE TURBINES OFFERED IN ELIN'S BID DEVIATED MATERIALLY FROM IMPORTANT REQUIREMENTS OF THE INVITATION. OTHER DATA REQUIRED TO BE FURNISHED BY THE BIDDER WERE NOT SUBMITTED. HOWEVER, ELIN'S BID WAS ACCOMPANIED BY A COVER LETTER WHICH STATED " IF THERE SHOULD BE ANY DISCREPANCY BETWEEN OUR PROPOSAL SPECIFICATION AND YOUR SPECIFIED REQUIREMENTS OF INVITATION DS-4712, THE LATTER SHALL ALONE PREVAIL AND WE ARE BOTH WILLING AND ABLE TO FULLY MEET THEM.'

YOUR LETTER FURTHER STATES:

WITHOUT IN ANY WAY QUESTIONING THE FACT THAT THE GENERAL DECLARATORY COMPLIANCE STATEMENT IS MADE IN GOOD FAITH, NEVERTHELESS THE FACT THAT IN THIS PROCUREMENT FOR SPECIALIZED EQUIPMENT, THE BIDDER HAS MADE SPECIFIC, MATERIAL DEVIATIONS AND OMISSIONS IN ITS BID, NECESSARILY RAISES THE POSSIBILITY THAT THERE MAY SUBSEQUENTLY OCCUR AN UNWILLINGNESS OR INABILITY ON THE PART OF THE BIDDER TO ABIDE BY ITS GENERAL STIPULATION. IF SUCH OCCURS, IT MAY NOT BE REVEALED UNTIL LONG AFTER THE AWARD OF CONTRACT, AND THUS THERE COULD RESULT PROTRACTED DELAYS, EVEN DEFAULT AND TERMINATION. IN SITUATIONS SUCH AS HERE INVOLVED, WHERE THERE IS A RELATIVELY TIGHT TIME SCHEDULE OF PROCUREMENT AND INSTALLATION AND WHERE CORRELATION OF MANUFACTURE AND INSTALLMENT WITH OTHER CONTRACTORS IS OF OBVIOUS NECESSITY, SUCH DELAYS MAY PROVE COSTLY AND OTHERWISE BURDENSOME TO THE GOVERNMENT. FROM THIS STANDPOINT, IN CASES INVOLVING NOT COMMERCIAL OR STANDARD PRODUCTS BUT HIGHLY SPECIALIZED EQUIPMENT, A RULE THAT A GENERAL STATEMENT OF WILLINGNESS TO COMPLY IS TO BE REGARDED AS OVERCOMING MATERIAL DEVIATIONS FROM PARTICULAR REQUIREMENTS OF THE SPECIFICATIONS IS DECIDEDLY UNDESIRABLE.

THE QUESTION AS TO THE EFFECT OF A BLANKET OFFER TO COMPLY WITH THE TERMS OF THE SPECIFICATIONS, NOTWITHSTANDING THAT THE DETAILED MATTER FURNISHED BY THE BIDDER AS REQUIRED BY THE INVITATION DOES NOT COMPLY, HAS BEEN BEFORE OUR OFFICE IN THE PAST. IN 10 COMP. GEN. 160, AND IN A 68974, FEBRUARY 17, 1936, AND MAY 16, 1936, WE HELD THAT SUCH BIDS WERE RESPONSIVE TO THE INVITATION. WE DO NOT FEEL THAT THESE DECISIONS ARE CONTROLLING HERE, HOWEVER, BECAUSE IN OUR VIEW IT DOES NOT FOLLOW THAT A GENERAL COMPLIANCE OFFER CURES THE BIDDER'S OMISSIONS REFERRED TO IN YOUR LETTER RESULTING FROM ITS FAILURE TO FURNISH COMPLETE DESCRIPTIONS, GENERAL DRAWINGS, PHOTOGRAPHS OR CUTS COVERING THE GENERAL CONSTRUCTION AND APPROXIMATE DIMENSIONS OF THE TURBINES AS SPECIFICALLY REQUIRED BY PARAGRAPH B-4 OF THE SPECIFICATIONS WHICH READS AS FOLLOWS:

B-4. DATA REQUIRED OF BIDDERS. EACH BIDDER SHALL SUBMIT WITH HIS BID, IN DUPLICATE, COMPLETE DESCRIPTIONS, INCLUDING GENERAL DRAWINGS AND PHOTOGRAPHS OR CUTS, COVERING THE GENERAL CONSTRUCTION AND APPROXIMATE DIMENSIONS OF THE APPARATUS THAT HE PROPOSES TO FURNISH. EACH BIDDER SHALL STATE THE KINDS OF MATERIALS TO BE USED, THE PHYSICAL PROPERTIES OF THE MATERIALS AND THE MAXIMUM UNIT STRESSES TO WHICH THE MATERIALS WILL BE SUBJECTED WHEN OPERATING UNDER THE MOST SEVERE CONDITIONS, FOR ALL PARTS OF THE APPARATUS, THE DIMENSIONS OF WHICH ARE DETERMINED PRIMARILY BY THE STRESSES TO WHICH THE SAID PARTS ARE SUBJECTED. EACH BIDDER SHALL FILL IN THE APPLICABLE BLANK SPACES UNDER " SERVICES OF ERECTING ENGINEER," " WARRANTED CHARACTERISTICS," AND " DATA TO BE FURNISHED BY BIDDER.' BIDDERS SHALL FURNISH WITH THEIR BIDS, IN DUPLICATE, CURVES SHOWING EXPECTED EFFICIENCY, GATE OPENING, AND DISCHARGE (IN CUBIC FEET PER SECOND) WITH REFERENCE TO HORSEPOWER OUTPUT. THESE CURVES SHALL BE PLOTTED FOR EFFECTIVE HEADS OF 75, 95, 116, 130, AND 140 FEET ( ITEM 1); AND 140, 145, AND 148 FEET ( ITEM 2). THE CURVES SHALL COVER THE FULL RANGE OF CAPACITY FROM 1/10 TO FULL LOAD. BIDS THAT DO NOT COMPLY WITH THE ABOVE REQUIREMENTS MAY NOT BE CONSIDERED. ( ITALICS SUPPLIED.)

WE HAVE HELD THAT THE FAILURE OF A BIDDER TO SUBMIT "DESCRIPTIVE LITERATURE" OR SAMPLES WITH HIS BID, AS REQUIRED BY THE INVITATION, MAY BE WAIVED AS AN INFORMALITY WHERE THE ADVERTISED SPECIFICATIONS FULLY SET FORTH THE REQUIREMENTS OF THE GOVERNMENT AND THE BIDDER PROPOSES TO MEET THE SPECIFICATIONS. B-125148, NOVEMBER 23, 1955; 17 COMP. GEN. 940. HOWEVER, AS POINTED OUT ON PAGE 944 OF THE LATTER DECISION:

IT MAY BE THAT IN EXCEPTIONAL CASES WHERE, DUE TO THE INTRICACY, NOVELTY, ETC., OF THE ARTICLE TO BE PURCHASED, THE SPECIFICATIONS CANNOT BE STATED WITH SUFFICIENT CERTAINTY TO WARRANT THE ACCEPTANCE OF A BID WITHOUT THE PRIOR SUBMISSION OF A SAMPLE TO SHOW EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, OR IN OTHER CASES, DUE TO THE PARTICULAR NEEDS OF THE GOVERNMENT, IT WOULD NOT BE TO THE INTEREST OF THE GOVERNMENT TO WAIVE THE FAILURE TO SUBMIT A SAMPLE, AND IN SUCH CASES, WHERE SUCH CIRCUMSTANCES ARE ESTABLISHED, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE ACCEPTANCE OF A HIGHER BID BECAUSE THE LOW BIDDER FAILED TO SUBMIT THE REQUIRED SAMPLE BEFORE THE BIDS WERE OPENED. * * *

ALONG THE LINES OF THE REASONING IN THAT DECISION, WE RECOGNIZE THAT WHERE, AS HERE, THERE IS INVOLVED THE PROCUREMENT OF HIGHLY SPECIALIZED EQUIPMENT, AN ADMINISTRATIVE AGENCY PROPERLY MAY DEEM THE SUPPLYING OF DESCRIPTIONS, ETC., AS ESSENTIAL TO ITS DETERMINATION AS TO WHETHER THE PROPOSED EQUIPMENT MEETS THE REQUIREMENTS OF THE GOVERNMENT, AND TO ENABLE IT TO INTELLIGENTLY CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD. IN SUCH CIRCUMSTANCES, IN OUR VIEW IT IS APPROPRIATE FOR THE INVITATION TO CONDITION THE CONSIDERATION AND EVALUATION OF A BID UPON THE FURNISHING OF DESCRIPTIVE DATA. THAT SEEMS TO HAVE BEEN DONE HERE, SINCE THE ABOVE QUOTED PARAGRAPH B-4 OF THE SPECIFICATIONS REQUIRES IN MANDATORY TERMS THAT THE DESCRIPTIVE DATA "SHALL" BE SUBMITTED WITH THE BID AND SPECIFICALLY WARNED THAT BIDS FAILING TO COMPLY WITH THIS REQUIREMENT "MAY NOT BE CONSIDERED.'

IN A RECENT DECISION (B-128541, NOVEMBER 6, 1956, 36 COMP. GEN. 376), WE POINTED OUT THAT IT IS NOT ONLY PROPER BUT DESIRABLE TO SPELL OUT IN INVITATIONS FOR BIDS THE EFFECT OF A FAILURE TO SUPPLY DESCRIPTIVE MATERIAL WHERE SUCH MATERIAL IS CONSIDERED ESSENTIAL. IT WAS STATED THEREIN THAT:

* * * WHILE WE PERCEIVE NO OBJECTION TO STIPULATING THAT A BIDDER MUST FURNISH CERTAIN DESCRIPTIVE DATA WITH ITS BID, IT IS RECOMMENDED THAT IN FUTURE PROCUREMENTS WHEN IT IS DEEMED DESIRABLE TO REQUIRE SUCH MATERIAL, THERE BE INCLUDED IN THE INVITATION A DEFINITE STATEMENT AS TO THE PURPOSE AND EFFECT OF SUCH REQUIREMENT, AND PARTICULARLY TO WHAT EXTENT THE MATTER FURNISHED THEREUNDER WILL BE CONSIDERED IN THE EVALUATION OF THE BIDS. OTHER WORDS, WE FEEL THAT THE INVITATION SHOULD EITHER (1) DISTINCTLY POINT OUT THAT, NOTWITHSTANDING A VARIANCE BETWEEN THE SPECIFICATIONS AND DESCRIPTIVE MATERIAL FURNISHED, THE SPECIFICATIONS WILL BE CONTROLLING, OR (2) WHERE DESCRIPTIVE MATERIAL IS DEEMED ESSENTIAL, CONTAIN AN AFFIRMATIVE STATEMENT TO THE EFFECT THAT SUCH MATERIAL WILL BE IN STRICT COMPLIANCE WITH THE SPECIFICATIONS AND THAT A FAILURE TO SUBMIT SUCH MATERIAL WITH THE BID OR A FAILURE OF THE MATERIAL SUBMITTED TO COMPLY STRICTLY WITH THE SPECIFICATION REQUIREMENTS, WILL PRECLUDE CONSIDERATION OF THE BID AS NOT CONFORMING TO THE INVITATION.

IN VIEW OF THE FOREGOING, WE THINK IT MUST BE CONCLUDED THAT A BLANKET OFFER TO COMPLY WITH SPECIFICATIONS CANNOT OVERCOME OR RENDER NUGATORY EITHER THE SPECIFIC REQUIREMENT IN AN INVITATION FOR THE FURNISHING OF DESCRIPTIVE DATA WHICH IS DEEMED MATERIAL, OR THE PROVISIONS THEREOF RELATING TO THE EXTENT TO WHICH SUCH DATA WILL BE CONSIDERED IN THE EVALUATION OF BIDS.

SO FAR AS THE PRESENT CASE IS CONCERNED, AS HERETOFORE INDICATED, THE LETTER OF OCTOBER 1 STATES THAT THE AMERICAN ELIN BID DID NOT INCLUDE COMPLETE DESCRIPTIONS, GENERAL DRAWINGS, PHOTOGRAPHS OR CUTS COVERING THE GENERAL CONSTRUCTION AND APPROXIMATE DIMENSIONS OF THE TURBINES PROPOSED TO BE FURNISHED AS REQUIRED BY PARAGRAPH B-4. FURTHER, IT IS STATED THAT CURVES FURNISHED BY AMERICAN ELIN DID NOT SHOW GATE OPENINGS NOR DID THEY COVER THE FULL RANGE OF CAPACITY FROM 1/10 TO FULL LOAD AS REQUIRED BY THE INVITATION; AND IN ADDITION, A CURVE PLOTTED FOR AN EFFECTIVE HEAD OF 75 FEET FOR ITEM ONE WAS NOT SUBMITTED. IT WAS STATED THAT "LACK OF THIS MATERIAL PREVENTED APPRAISAL OF DIFFICULTIES TO BE ENCOUNTERED IN OBTAINING COMPLIANCE WITH STRESS REQUIREMENTS.'

IN A SUPPLEMENTAL LETTER OF NOVEMBER 1, 1956, FROM YOUR DEPARTMENT, THE FOREGOING OMISSIONS WERE REFERRED TO AND THERE WAS CITED AN ADDITIONAL OMISSION AS FOLLOWS:

ALSO, THE INVITATION PROVIDES FOR ACCEPTANCE TESTS CONDUCTED IN ACCORDANCE WITH THE LATEST TEST CODE FOR HYDRAULIC PRIME MOVERS OF THE AMERICAN SOCIETY OF MECHANICAL ENGINEERS, OR THAT THE TEST METHODS AND EQUIPMENT USED SHALL BE MUTUALLY AGREEABLE TO BOTH CONTRACTING PARTIES. THE AMERICAN ELIN PROPOSAL STATES " THE EFFICIENCIES ARE VALID WITHOUT TOLERANCE; INACCURACY OF MEASURING IS CONSIDERED IN ACCORDANCE WITH SWISS RULES FOR WATER TURBINES NO. 178B.' THE CONTRACTING OFFICER HAS NO INFORMATION REGARDING THE SWISS RULES AND THE ELIN BID OMITTED STATING WHETHER AND TO WHAT EXTENT THE SWISS RULES DIFFER FROM THE ASME CODE. THEREFORE, NO APPRAISAL OF THE ELIN WARRANTY VALUE HAS BEEN MADE.

IT IS STATED IN THE LETTER OF NOVEMBER 1 THE CONTRACTING OFFICER HAS ADVISED THAT BECAUSE OF THE OMISSIONS ABOVE REFERRED TO THE "ESSENTIAL CHARACTERISTICS OF THE TURBINES OFFERED BY AMERICAN ELIN COULD NOT BE DETERMINED AT THE TIME OF BID OPENING.'

MOREOVER, IT IS NOTED THAT PARAGRAPH B-5 OF THE SPECIFICATIONS REQUIRES THAT THE SUCCESSFUL CONTRACTOR MUST SUPPLY PRELIMINARY DRAWINGS WITHIN 60 DAYS OF RECEIPT OF NOTICE OF AWARD, THESE DRAWINGS TO SHOW SUFFICIENT OVERALL DIMENSIONS TO ENABLE THE GOVERNMENT TO COMPLETE THE DESIGN OF THE INSTALLATION. IT IS FURTHER PROVIDED IN THE SAME PARAGRAPH THAT IF THE CONTRACTOR FAILS TO FURNISH THE DRAWINGS WITHIN THE 60-DAY PERIOD,"THE DATA FURNISHED WITH THE BID WILL BE CONSIDERED FIRM VALUES, AND NO CHANGE IN THE DATA WILL BE PERMITTED.' ONE OF THE APPARENT PURPOSES OF THE REQUIREMENT FOR DRAWINGS, PHOTOGRAPHS, ETC., TO BE SUBMITTED WITH THE BID WAS TO PROTECT THE GOVERNMENT AGAINST THE FAILURE OF THE SUCCESSFUL CONTRACTOR TO PROVIDE THE DRAWINGS REQUIRED UNDER B-5 WITHIN THE REQUESTED TIME. PARAGRAPH B 5, HOWEVER, GIVES NO PROTECTION TO THE GOVERNMENT IF THE AWARD BE MADE TO A BIDDER WHO FAILED TO FURNISH WITH HIS BID THE INFORMATION REQUIRED BY PARAGRAPH B-4.

ACCORDINGLY, AND SINCE PARAGRAPH B-4 SPECIFICALLY RESERVES TO THE GOVERNMENT THE RIGHT TO REJECT BIDS NOT COMPLYING WITH THE REQUIREMENTS STATED IN THAT PARAGRAPH, THE CONCLUSION APPEARS TO BE REQUIRED THAT THE FAILURE TO SUBMIT THE INFORMATION SPECIFIED SHOULD NOT BE WAIVED AND, THEREFORE, THAT THE BID OF AMERICAN ELIN SHOULD BE REJECTED.

BY LETTER OF NOVEMBER 16 YOUR DEPARTMENT FORWARDED HERE CERTAIN MATERIAL TRANSMITTED BY AMERICAN ELIN CORPORATION'S LETTER OF OCTOBER 26, 1956, TO THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER, WHICH MATERIAL, THE LATTER OFFICIAL REPORTS,"WOULD SUFFICE TO SUPPLY ALL OF THE IMPORTANT OMISSIONS FROM THE BID" WHICH WERE POINTED OUT IN YOUR DEPARTMENT'S LETTER OF OCTOBER 1. HOWEVER, IN THE VIEW WE TAKE THAT BY FAILING TO SUBMIT THE MATERIAL IN QUESTION WITH ITS BID THE BIDDER DID NOT COMPLY WITH AN ESSENTIAL REQUIREMENT OF THE SPECIFICATIONS, AND THAT SUCH OMISSION SHOULD NOT BE WAIVED, IT IS APPARENT THAT TO NOW ACCEPT AND CONSIDER SUCH MATERIAL WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO CHANGE HIS BID AFTER BID OPENING WHICH IS, OF COURSE, UNAUTHORIZED. CF. 33 COMP. GEN. 421; 34 ID. 24; AND PARTICULARLY 35 ID. 98.

THE ENCLOSURES FURNISHED WITH THE LETTERS OF OCTOBER 1 AND NOVEMBER 16 ARE RETURNED AS REQUESTED.